Agency accused of closed-door dealing

Published 8:50 pm, Wednesday, July 18, 2012

ALBANY — An environmental group behind a lawsuit attempting to block construction of an Adirondack resort claimed Wednesday that emails between the developer and the Adirondack Park Agency prove the two sides were negotiating privately prior to the project's approval earlier this year.

Protect the Adirondacks and the Sierra Club released the emails Wednesday as part of court filings in its lawsuit against the Adirondack Club and Resort in Tupper Lake. The emails were obtained under the state Freedom of Information Law.

In March, the environmental group sued the APA, claiming it ignored its own regulations and state law to approve the 6,200-acre resort project, the largest ever approved in the history of the 6-million-acre Adirondack Park.

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The resort would create about 700 new homes, 29 luxurious "great camps" on forest tracts, a 60-room inn and miles of new roads, plus sewer and water lines.

The nearby Tupper ski mountain would be redeveloped, along with a lakefront marina along Route 30. Developer Michael Foxman spent seven years in APA review prior to the January approval after a lengthy public hearing process run by the APA. State officials, environmentalists, local officials and developers were constrained by rules limiting conversations about the project. Those rules were meant to ensure the APA decision was based on the hearing record and not influenced by private communications.

Protect and the Sierra Club released about 30 pages of emails between APA hearing attorney Paul Van Cott and Thomas Ulasewicz, a Glens Falls lawyer representing Foxman. The emails are dated from the summer and fall of 2011, prior to the APA vote, and reflect negotiations over certain aspects of the permit language that ultimately were approved.

"Do you really want the APA running its proposed conditions only past the developer, or do you want these conditions, as the law requires, disclosed to all the parties involved?" said Bob Glennon, a lawyer with Protect the Adirondacks and an APA director from 1988 to 1995 who worked for six different APA chairmen.

"This is not how we did things. This is a sad day for the APA and anyone who cares about it. How low have we sunk," Glennon said.

Ulasewicz, who was Glennon's predecessor as APA executive director before forming his own law practice, did not return a telephone call seeking comment.

APA spokesman Keith McKeever said: "The APA strictly followed established ex parte communication regulations. The agency categorically denies that there was any prohibited communications."

Ex parte is a legal term meaning done for, or on the application of, one party.

APA rules regarding ex parte communications state, in part, that "no party or representative of a party shall communicate in any form with the agency or any member regarding any matter subject to quasi-judicial proceedings before the agency without serving copies of the communication on all other parties to the proceeding." The rules also state "no agency member or employee responsible for rendering a decision or making findings of fact and conclusions of law shall communicate in connection with any issue of fact, or issue of law, with any person, party or his representative, except upon notice and opportunity for all parties to participate."

In fall 2011, when APA officials toured the project site, an agency news release stated that "due to ex parte requirements, no dialogue is permitted between agency board members and members of the media or public regarding the ... project."

Glennon said the emails were filed this week to update the lawsuit filed in March in state Supreme Court in Albany County. The suit will be transferred to the next highest court, the five-judge Appellate Division of state Supreme Court, this fall.

Protect will pursue legal discovery to learn if there were other communications between agency hearing staff and the developer, Glennon said. The APA denied part of the group's request for email records between agency staff and the developer, and that denial will be appealed, he said.

Also, Protect and the Sierra Club will file a motion to "seek depositions from all persons believed to have been involved in and with knowledge of those communications," Glennon said.